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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 76 FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 2nd day of December, 2008, are as follows:

BY WEIMER, J.:

2007-K -1573

STATE OF LOUISIANA v. JOHN J. KESTLE

(Parish of Jefferson)

Retired Judge Lemmie O. Hightower, sitting ad hoc for Calogero, C.J., recused. For the foregoing reasons, we find sufficient evidence was introduced to enable the trial court to conclude that defendant was driving while intoxicated. Thus, we reverse the court of appeal decision and reinstate the trial court conviction and sentence. REVERSED.

12/02/08

SUPREME COURT OF LOUISIANA
No. 07-K-1573 STATE OF LOUISIANA VERSUS JOHN J. KESTLE
On Writ of Certiorari to the Court of Appeal, Fifth Circuit, Parish of Jefferson

WEIMER, Justice1 Writ was granted in this matter to clarify the extent to which the lay opinion testimony of a police officer regarding behavioral manifestations of narcotics intoxication can pass sufficiency review in the context of a driving while intoxicated prosecution. For reasons that follow, we reverse the ruling of the court of appeal and reinstate the trial court's determination that the police officer's testimony, when coupled with other evidence, was sufficient to support the conviction. FACTS AND PROCEDURAL BACKGROUND On the evening of October 12, 2004, Trooper Wayne Coates with the Louisiana State Police was dispatched to the scene of an accident on Interstate 10 in Metairie near the Bonnabel Boulevard exit. Upon arrival at the scene, the trooper found a
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Retired Judge Lemmie O. Hightower, sitting ad hoc for Calogero, C.J., recused.

truck on the side of the road with its left front tire deflated. Noting that the driver, John J. Kestle, who was sitting behind the wheel seemed intoxicated, the trooper advised him of his Miranda rights and questioned him about the crash. Defendant related that an unknown vehicle swerved into his lane causing him to strike the bridge railing. The trooper then asked the driver to exit the vehicle. Although he did not detect an odor of alcohol or see any indication of alcohol use, the trooper conducted a field sobriety test. Defendant was unsteady on his feet and had to maintain contact with the vehicle in order to keep his balance. Defendant told the trooper he was tired from working ten hours, had disc problems, and his sandals prevented him from adequately performing tests on the gravel. In response to the trooper's question, defendant claimed to have had three beers, but denied taking any narcotics. Defendant's performance on the field sobriety test, captured on videotape entered into evidence, along with his behavior during the entire investigation indicated some form of extreme intoxication. An intoxilyzer test, administered while defendant was at lockup, confirmed there was no blood alcohol in his system. Defendant refused to submit to a urine test and was not asked to provide a blood sample. Defendant was charged with reckless operation and driving while intoxicated. Following a bench trial, he was convicted of third offense DWI under LSA-R.S.

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14:98 and sentenced to two and one-half years at hard labor, with all but thirty days suspended. Defendant appealed, arguing that the evidence at trial was insufficient to prove that he was intoxicated because the State failed to prove he was under the influence of a scheduled narcotic. Defendant further argued that the arresting officer was not certified to determine whether he was under the influence of a narcotic and was not certified to articulate the type of narcotic under which he believed defendant to be impaired. The court of appeal agreed, citing the Jackson v. Virginia2 standard and noting the conviction in the instant case rested on circumstantial evidence. The court of appeal further found that the State was required to prove that the defendant in this case was under the influence of a controlled dangerous substance in accordance with LSA-R.S. 14:98(A)(1)(c) to convict him of third offense DWI. The court of appeal conceded the defendant's failure to pass field sobriety tests could be indicative of narcotics intoxication, acknowledged an officer's subjective opinion regarding narcotics intoxication was relevant, and noted defendant's refusal to submit to a chemical test could weight against him. However, the court of appeal found the trooper had no formal training in distinguishing between alcohol and narcotic impairment, and his certification was limited to field sobriety tests and intoxilyzer

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433 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). 3

use. Although the trooper believed the defendant was under the influence of a narcotic, he could not offer an opinion as to the specific drug. The court of appeal found the arresting officer was not trained or qualified as an expert in narcotic detection because he lacked Drug Recognition Expert (DRE) certification.3 Pursuant to LSA-R.S. 14:98, the court of appeal reasoned the State was required to prove intoxication by a specific scheduled drug. In light of the lack of a chemical analysis identifying the drug, accompanied by the defendant's assertion that he had not taken any drugs, the court of appeal concluded the State's evidence was insufficient under the statute to support a conviction. The court of appeal noted the defendant denied having taken any drugs; the following factors: his car was not searched; there was no evidence that he was in possession of drugs, pills, bottles, or any drug paraphernalia; and the precise source of defendant's impairment was not established by chemical testing or expert testimony. Under the circumstances, the court of appeal was unable to conclude the trooper's identification of the intoxicating substance as a narcotic was sufficient to support a conviction under the statute and reversed. State v. Kestle, 0749 (La.App. 5 Cir. 6/26/07), 963 So.2d 1023.

The trooper acknowledged that he was not DRE certified. The DRE training programs are designed to provide participants with the expertise to determine whether a person is under the influence of one or more drugs in seven broad categories: (1) central nervous system depressants (e.g., Valium, Xanax); (2) central nervous system stimulants (e.g., cocaine, methamphetamine); (3) hallucinogens (e.g., LSD); (4) dissociative anesthetics (e.g., PCP); (5) narcotic analgesics (e.g., opium, heroin); (6) inhalants (e.g., Toluene, plastic cement); and (7) Cannabis. See The International Drug Evaluation and Classification Program, http://www.decp.org. 4

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The State applied for writ of certiorari asking this court to reinstate defendant's conviction and sentence. The State's application was granted to clarify the extent to which testimony of behavioral manifestations of intoxication alone can pass sufficiency review in the context of narcotics-only intoxication and to clarify whether the lay opinion testimony of an officer is sufficient to convict without additional expert testimony. State v. Kestle, 07-1573 (La. 4/18/08), 978 So.2d 336. DISCUSSION The State contends the court of appeal misapplied the Jackson v. Virginia standard and substituted its judgment for that of the trier of fact by accepting a hypothesis of innocence that the trier of fact reasonably rejected specifically that the defendant was wearing sandals, was tired from working ten hours, and suffered from back problems. The State notes there were clear behavioral manifestations of intoxication in this case: the defendant could not maintain his balance, his pupils were tightly constricted, and he was cognitively impaired. The video in evidence establishes the defendant's performance on the field sobriety tests was extremely poor in that he could not follow instructions, fell to the ground at one point, could not count his steps, nor walk heel-to-toe or stand on one leg. His performance was impaired to such an extreme that the trooper ceased the field sobriety tests because he feared defendant would hurt himself.

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The State points out that defendant consented to an intoxilyzer test for alcohol, but refused a urine test for narcotics, reasonably supporting an inference that he sought to avoid chemical detection of narcotics in his system. Additionally, the State argues that defendant's own statement that he consumed three beers but had not used narcotics was not credible in light of the results from the intoxilyzer4 and horizontal gaze nystagmus test which showed he had not consumed alcohol. However, the State contends defendant did exhibit behavioral manifestations of extreme intoxication. In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the Jackson v. Virginia standard enunciated by the United States Supreme Court. State v. Captville, 448 So.2d 676, 678 (La. 1984). When the conviction is based on circumstantial evidence, such evidence must exclude every reasonable hypothesis of innocence. LSA-R.S. 15:438; State v. Camp, 446 So.2d 1207, 1209 (La. 1984); State v. Wright, 445 So. 2d 1198, 1201 (La. 1984). However, LSA-R.S. 15:438 does not establish a stricter standard of review than the more general rational juror reasonable doubt formula. It is merely an evidentiary guide for the trier of fact when considering circumstantial evidence. State v. Porretto, 468 So.2d 1142, 1146 (La. 1985). The trier of fact makes credibility determinations and may accept or reject the testimony of any witness. See State v. Tompkins, 403 So.2d 644, 647 (La. 1981).
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He blew .000 indicating there was no alcohol in his system. 6

In order to convict a defendant of driving while intoxicated, the prosecution must prove the defendant was operating a vehicle and that he was under the influence of alcohol or drugs. At the time of defendant's arrest, LSA-R.S. 14:98 provided in pertinent part: A. (1) The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when: (a) The operator is under the influence of alcoholic beverages; or (b) The operator's blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood; or (c) The operator is under the influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or V as set forth in R.S. 40:964; or (d)(i) The operator is under the influence of a combination of alcohol and one or more drugs which are not controlled dangerous substances and which are legally obtainable with or without a prescription. (ii) It shall be an affirmative defense to any charge under this Subparagraph pursuant to this Section that the label on the container of the prescription drug or the manufacturer's package of the drug does not contain a warning against combining the medication with alcohol. (e) The operator is under the influence of one or more drugs which are not controlled dangerous substances and which are legally obtainable with or without a prescription and the influence is caused by the operator knowingly consuming quantities of the drug or drugs which substantially exceed the dosage prescribed by the physician or the dosage recommended by the manufacturer of the drug.5
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2007 La. Acts, No. 227 rewrote subparagraph (A)(1)(e) to provide as follows: (e)(i) The operator is under the influence of one or more drugs which are not controlled dangerous substances and which are legally obtainable with or without a prescription. (ii) It shall be an affirmative defense to any charge under this Subparagraph 7

In State v. Hightower, 238 La. 876, 116 So.2d 699, 703 (1959), this court stated that "a person is intoxicated within the provisions of the statute when he does not have the normal use of his physical and mental faculties by reason of the use of alcoholic beverages (or narcotics), thus rendering such person incapable of operating an automobile in a manner in which an ordinarily prudent and cautious man in full possession of his faculties, using reasonable care, would operate a motor vehicle under like conditions." It has been widely recognized that intoxication, with its behavioral manifestations, is an observable condition about which a witness may testify. State v Allen, 440 So.2d 1330, 1332 (La. 1983); State v. Neal, 321 So.2d 497, 500 (La. 1975). Behavioral manifestations, sufficient to support a charge of DWI, in the absence of a scientific test, are determined on a case by case basis. See, e.g., State v. Holladay, 38,354, p. 4 (La.App. 2 Cir. 5/12/04), 873 So.2d 855, 857; State v. Landry, 01-0784, p. 5 (La.App. 4 Cir. 12/12/01), 804 So.2d 791, 794-795; State v. Anderson, 00-1737, p. 10 (La.App. 1 Cir. 3/28/01) 784 So.2d 666, 676; State v. Bourgeois, 00-1585, p. 7 (La.App. 5 Cir. 3/14/01), 785 so.2d 848, 853; State v. Iles, 96-0256, pp. 7-8 (La.App. 3 Cir. 11/6/96) 684 So.2d 38, 42. An officer's subjective

pursuant to this Section that the operator did not knowingly consume quantities of the drug or drugs which substantially exceed the dosage prescribed by the physician or the dosage recommended by the manufacturer of the drug. 8

opinion that a subject failed a field sobriety test may constitute sufficient evidence of intoxication to support a DWI conviction. State v. Graves, 95-0578, p. 7 (La.App. 1 Cir. 5/10/96), 675 So.2d 1141, 1145-46. Although the court of appeal recognized these precepts apply to intoxication whether caused by ingestion of alcohol or narcotics, the court noted the bulk of jurisprudence involves alcohol intoxication which is generally accompanied by a distinctive element

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